1. This appeal arises oat of a suit to set aside a decree on the ground of fraud. The plaintiff alleged that he held the land in dispute as an occupancy raiyat under the defendant for a long time, but that the latter by inducement, threat and misrepresentation obtained two kabuliyats for a term of 3 years from the plaintiff in the year 1911, and then brought a suit in the year 1914 for ejectment of the plaintiff on the ground that the term of the kabuliyat had expired; that the plaintiff filed his written statement in the said suit, but on the adjourned date of hearing could not appear owing to his illness, and the defendant obtained a decree for ejectment by fraud, in execution of which he dispossessed the plaintiff. The plaintiff thereupon brought the present suit on the 3rd December 1915 for setting aside the decree and for possession.
2. The Courts below found that the plaintiff was an occupancy raiyat and that the kabuliyats were obtained from him by the defendant to defeat his rights, that the claim was false to his knowledge and on this ground set aside the decree. The defendant has appealed to this Court.
3. With respect to the question as to what constitutes fraud for which a decree can be set aside, two propositions appear to be well established. The first is that although it is not permitted to show that the Court (in the former suit) was mistaken, it may be shown that it was misled, in other words, where the Court has been intentionally misled by the fraud of a party and a fraud has been committed upon the Court with the intention to procure its judgment, it will vitiate its judgment. The second is that a decree cannot be set aside merely on the ground that it has been procured by perjured evidence. See Baker v. Wadsworth (1898) 67 L.J.Q.B. 301; Mahomed Golab v. Mahomed Sulliman 21 C. 612 at p. 619 at page 619 (where, however, the observations were obiter), Abdul Huq Chowdhury v. Abdul Hafez 5 Ind. Cas. 648 : 14 C.W.N. 695 : 11 C.L.J. 636; Munshi Moruful Huq v. Surendra Nath Roy 15 Ind. Cas. 893 : 16 C.W.N. 1002 and Nanda Kumar v. Ramjiban 23 Ind. Cas. 337 : 18 C.W.N. 681 : 41 C. 990 : 19 C.L.J. 457.
4. The actual decision in the case of Lakshmi Charan Shaha v. Nur Ali 11 Ind. Cas. 626 : 15 C.W.N. 1010 : 38 C. 936 (to which one of the members of the present Bench was a party) is really not in conflict with the above cases. It was no doubt observed in that case that the proposition of law as laid down in Mahomed Golab's case 21 C. 612 at p. 619 had the effect of restricting within too narrow limits the remedy of a man against whom a fraudulent decree has been obtained. It was pointed out that the opinion expressed by Petharam, C.J., was obiter dictum, and that opinion again was based on an obiter dictum of James and Thesiger, L. JJ., and that Bagallay, L.J., reserved his opinion on the point. Reliance was placed on the cases of Abouloff v. Oppenheimer (1882) 10 Q.B.D. 295 at p. 307 : 52 L.J.Q.B. 1 : 47 L.T. 325 : 31 W.R. 57; Priestman v. Thomas (1884) 9 P.D. 210 : 53 L.J.P. 109 : 51 L.T. 843 : 32 W.R. 842 and Vadala v. Lawes (1890) 25 Q.B.D. 310 : 63 L.T. 128 : 38 W.B. 594 as showing that the authority on which the opinion of Sir Comer Petharam, C.J., was based had not been recognized in England, and it was laid down: 'It is quite dear from the cases quoted above that the jurisdiction of the Court trying a suit of this kind is not limited to an investigation merely as to whether the plaintiff was prevented from placing his case at the prior trial by the fraud of the defendant. The Court can and must rip up the whole matter for determining whether there has been fraud in the procurement of the decree.'
5. The case was dissented from in the case of Munshi Moruful Huq v. Surendra Nath Roy 15 Ind. Cas. 893 : 16 C.W.N. 1002 by Carnduff and Chapman, JJ. who reviewed the cases on the point and followed the cases of Flower v. Lloyd (1879) 10 Ch.D. 327 : 39 L.T. 613 : 27 W.R. 496; Patch v. Ward (1867) 3 Ch.App. 203 : 18 L.T. 134 : 16 W.R. 441; Baker v. Wadsworth (1898) 67 L.J.Q.B. 301. The learned Judges doubted the finality of the decisions in Abouloff v. Oppenheimer (1882) 10 Q.B.D. 295 at p. 307 : 52 L.J.Q. B. 1 : 47 L.T. 325 : 31 W.R. 57 and Vadala v. Lawes (1890) 25 Q.B.D. 310 : 63 L.T. 128 : 38 W.R. 594 even in England, and pointed out that the judgment impeached in each of those cases was a foreign judgment, and 'foreign judgments unquestionably stand on a different footing of their own.'
6. There is, however, as stated above, no real conflict, so far as the actual decision goes, between the cases of Lakshmi Charan Shaha v. Nur Ali 11 Ind. Cas. 626 : 15 C.W.N. 1010 : 38 C. 936 and Munshi Moruful Huq v. Surendra Nath Roy 15 Ind. Cas. 893 : 16 C.W.N. 1002 although different views were taken as to the grounds upon which a decree can be set aside in such cases and as to the authorities upon the point. In that case the decree sought to be set aside was an ex parte decree obtained upon a promissory note in the Akyab Court. It was found in the subsequent suit that the plaintiff (defendant in the former suit) never went to Akyab, never received any money from the defendant, and never executed the promissory note, so that the whole proceeding was fraudulent. That case was, therefore, one in which the claim was totally false and false to the knowledge of the defendant, and there was fraud practised upon the Court in the procurement of the decree. In the case of Munshi Moruful Huq v. Surendra Nath Roy 15 Ind. Cas. 893 : 16 C.W.N. 1002 on the other hand, the only fraud alleged was that the previous decree was obtained by perjured evidence, and that was also the case in Abdul Huq Chowdhury v. Abdul Hafez 5 Ind. Cas. 648 : 14 C.W.N. 695 : 11 C.L.J. 636 and Nanda Kumar v. Ram Jiban 23 Ind. Cas. 337 : 18 C.W.N. 681 : 41 C. 990 : 19 C.L.J. 457. In Kedar Nath Das v. hemanta Kumari Dasi 22 Ind. Cas. 709 : 18 C.W.N. 447 it was found that the fact of the previous suit was not known to the plaintiff (in the second suit) and that the said suit was in fact a false suit. The ex parte decree was accordingly set aside, and the decision of the Courts below was affirmed by this Court, Fletcher, J., (one of the members of the present Bench concurring) observed that the decisions in Lakshmi Charan Shaha v. Nur Ali 11 Ind. Cas. 626 : 15 C.W.N. 1010 : 38 C. 936 and Munshi Moruful Huq v. Surendra Nath Roy 15 Ind. Cas. 893 : 16 C.W.N. 1002 can be reconciled in the same way as the English decisions which were cited. It was pointed out that in the first case the plaintiff knew that the case which was put forward before the Court was in fact a false one. It was not a case where an application was made to set aside a judgment on the ground that it was obtained by perjury but it was a case of a party to the suit practicing fraud on the Court by putting forward before the Court a case which was a false one, while the second case only decided that a decree obtained in a suit cannot be Bet aside in a subsequent suit brought for the purpose on the mere proof that the previous decree was obtained by perjured evidence. The cases of Abouloff v. Oppenheimer (1882) 10 Q.B.D. 295 at p. 307 : 52 L.J.Q.B. 1 : 47 L.T. 325 : 31 W.R. 57 and Vadala v. Lawes (1890) 25 Q.B.D. 310 : 63 L.T. 128 : 38 W.R. 594 show that if the case which was placed before the Court was a false one, the Court has jurisdiction in a subsequent suit to set aside the decree which was obtained by fraud practised on the Court.
7. It is contended on behalf of the appellant that in order to set aside a decree on the ground of fraud, it must be shown that the fraud was practised in relation to proceedings in Court, and the decree must be shown to have been procured by practicing fraud upon the Court, that in Abouloff v. Oppenheimer (1882) 10 Q.B.D. 295 at p. 307 : 52 L.J.Q. B. 1 : 47 L.T. 325 : 31 W.R. 57; Vadala v. Lawes (1890) 25 Q.B.D. 310 : 63 L.T. 128 : 38 W.R. 594; Lakshmi Charan Shaha v. Nur Ali Ali 11 Ind. Cas. 626 : 15 C.W.N. 1010 : 38 C. 936 and Kedar Nath Dasi v. Hemanta Kumari Dasi 22 Ind. Cas. 709 : 18 C.W.N. 447 the fraud was committed in relation to proceedings in Court, while in Nanda Kumar v. Ramjiban 23 Ind. Cas. 337 : 18 C.W.N. 681 : 41 C. 990 : 19 C.L.J. 457 the fraud, if any, was committed out of Court (there was an entry in the Record of Bights followed by a rent decree) and that that is the true ground of distinction in such cases. Now, in order that a decree may be said to have been procured by practicing fraud upon 'the Court, the fraud must be in relation to proceedings in Court. It is unnecessary, however, to decide in the present case what is the precise ground of distinction in the cases cited above or to discuss the authorities on the point, because we think that in any view of the case the present suit fails.
8. The previous suit was based upon a kabuliyat for a term of 3 yews. The plaintiff admittedly executed the kabuliyat, but his case is that plaintiff in order to defeat his rights obtained the kabuliyat from him by inducement, threat and misrepresentation. The plaintiff, however, never took steps to avoid the kabuliyat, and the suit was brought 3 years after the execution of the kabuliyat, on the ground that the term (of 3 years) had expired. The plaintiff (defendant in the previous suit) filed his written statement, and raised the very same defense as that raised in the present ease and one of the issues raised was: 'Is the kabuliyat executed by the defendant in favour of plaintiff a valid and bona file document?' On the date finally fixed for the hearing of the ease, however, he could not appear and the evidence adduced by the defendant (plaintiff in the previous suit) was as follows: 'Defendant executed kabuliyats Exhibits I and II. He is not giving up possession. His term expired in Chait 1321.' That was the whole of the evidence and an ex parte decree was passed in his favour.
9. Now, there was no contrivance by which the present plaintiff was prevented from placing his case before the Court in the, previous suit, and it cannot be said that any fraud was practised on the Court in procuring the decree, or that the claim was false, though there might have been fraud in obtaining the kabuliyat several years before the suit. That the defendant did execute the kabuliyat the term of which had expired and that he was not giving up possession cannot be said to be false. Unless, therefore, we hold that the present defendant was bound to state the circumstances under which the kabuliyats were executed several years before the suit according to the case of the opposite party, viz., that the kabuliyats were obtained by coercion, misrepresentation or inducement which formed the subject matter of an issue in that suit, the decree obtained in the suit cannot be said to have been procured by fraud. To hold otherwise would be to hold that if a party to a suit does not disclose all the circumstances connected with the case of the opposite party and obtains a decree, it is open to the opposite party to bring another suit to prove his case and get the decree in the first suit set aside on the ground of fraud. But in that case there would be no end to litigation. We are of opinion that whatever may be the precise nature of fraud for which a decree may be set aside, the plaintiff in the present suit cannot get the decree in the previous suit set aside.
10. The appeal must, therefore, be allowed and the suit dismissed, but we direst that each party will bear his own casts in all Courts.
11. I agree with the judgment of my learned brother.
12. The fraud alleged is the obtaining of two miadi kabuliyats from the present plaintiff, who was as a matter of fact at the time an occupancy raiyat under him, by the defendant who is the landlord and on the expiration of the term mentioned in those kabuliyats suing the plaintiff for ejectment. The present plaintiff contested the suit brought by the present defendant for ejectment on expiry of the terms set out in the two kabuliyats. Issues were framed, but at the time of hearing, the present plaintiff did not appear before the Court. Ex parte evidence was taken and a decree for ejectment was given to the present defendant ex parte. As to that decree, it does not appear that the present plaintiff ever applied to have it set aside or that he ever made an appeal.
13. The present suit is to set aside that ex parte decree on the ground of fraud. But the first question is, was there any fraud perpetrated by the present defendant in the course of the suit
14. To my mind there is no such fraud proved. There was certainly no suppression of service of process. The present plaintiff himself appeared and issues were framed. He then took a large number of adjournments and finally let the suit be decided in his absence. The evidence given by the present defendant was to the effect that the kabuliyats were executed and the fact that there was such a kabuliyat executed is even now not in issue. In fact, in the words of a late Chief Justice in the case of Nanda Kumar v. Ram Jiban 23 Ind. Cas. 337 : 18 C.W.N. 681 : 41 C. 990 : 19 C.L.J. 457: 'In effect, when analysed the judgment of the lower Appellate Court is no more than a re-trial on the merits of the original suit and a determination that the Judge who decided that suit was mistaken. But the Court in this suit has no jurisdiction to decide on the merits of the former judgment : its function was to decide whether that judgment was vitiated by fraud.'
15. There has been no evidence of any fraud in the proceedings in the ejectment suit, though there may have been fraud in obtaining the kabuliyat originally and I must hold that the present suit cannot lie and the appeal must, therefore, be allowed.